Watson v. State

• Citation: 208 Md. 210,117 A.2d 549
• Decision Date: 08 November 1955
• Docket Number: No. 12,12
• Parties: Uzell WATSON v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 210

208 Md. 210

117 A.2d 549

Uzell WATSON v. STATE of Maryland.

No. 12.

Court of Appeals of Maryland.

Nov. 8, 1955.

Fred Oken, Baltimore, for appellant.

Stedman Prescott, Jr., Asst. Atty. Gen., (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty. Baltimore and James O'C. Gentry, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This appeal was brought here by Uzell Watson, a Negro, age 41, from his conviction by the Criminal Court of Baltimore for the murder of a baby born to Bernice Washington, a Negress, age 24, on July 22, 1954.

The mother of this child was living in the front second-floor apartment in the house located at 522 North Fulton Avenue. Although unmarried, she had been living with a man named Aaron Allen, who was the father of her three-year-old child. Allen had supported her irregularly. He paid her rent when he falt like it, and gave her some money occasionally. She had worked in a lunch room and as a domestic servant, but had been unemployed for several weeks on account of her proegnancy.

On the morning of July 22 Bernice phoned to Iona Watson, appellant's wife, and asked her to come to her apartment immediately. Iona arrived before noon, performed an abortion upon Bernice by inserting a rubber tube into her body, and left immediately afterwards.

Shortly after Iona left, Bernice called for help to Polly Conway, who was the tenant of the rear second-floor apartment, telling her that she was about to have a baby. Polly came to her assistance, staying with her until after the child was born at about 3:15 p. m.

On the morning of July 26 Officer Dziwulski, of the Baltimore City Police Department, removed the body of an infant from the Baltimore harbor at York Street and Battery Avenue, about three miles from the Hanover Street bridge, put the body in a bucket, and took it to the City Morgue. The body measured 14 inches from crown to heel and weighed two pounds. Dr. William V. Lovitt, Assistant Medical Examiner, testified that it was so badly decomposed that he could not determine its color and sex, but he expressed the opinion that the period of gestation for a body 14 inches in length is about seven months.

On July 28 Pally Conway signed a statement at the Northwestern Police Station accusing appellant of the murder of the baby by drowning it in a tub of water. In this statement she said:

'When the bell rang, I let a man in by himself, who asked for Bernice, and I showed him into Bernice's apartment. He picked the baby up by his feet, and the baby started screaming, and he put the baby in a tub of water, and the baby started screaming, fighting and moving, and he put the baby in the water and let it in the water, and I was screaming. He told me to go get some whiskey. He gave me $10, and told me to get the whiskey, and I bought a half pint. * * * The whiskey it was for me, and I brought it back, and I drank some and he drank some. Bernice didn't drink any. The boby was still in the water. * * * He wrapped up the baby in an old chenille spread * * * and put the baby in a shopping bag, and he left.'

On July 29 appellant signed a confession stating that, after Bernice Washington told him she did not want the baby, he put it in a tub of water, and that the baby might have had some life in it, but it did not move after he put it in the water; that it was Bernice's idea to put the baby in the water 'to get rid of it'; that he wrapped it up in a large piece of cloth and put it in a shopping bag; that, after taking a drink of whiskey, he left with the baby in the shopping bag; and that at a street corner he gave two dollars to a man, whom he had never seen before, 'to get rid of the package.'

The grand jury found three indictments. One charged appellant and Bernice Washington with murder. Another charged Bernice Washington and Iona Watson as being accessories in the commission of the murder. The third charged Iona Watson with abortion.

Appellant Bernice and Iona were tried jointly by the Criminal Court, Sitting without a jury. On the witness stand Bernice refused to say that her child was born alive. On cross-examination she replied: 'When I looked at it, I didn't see it move. * * * I was lying down. * * * I just glanced at it.' $Polly Conway, however, who was the chief witness for the State, testified without equivocation, as she had stated at the Northwestern Police Station, that the baby was born alive. She definitely testified that the baby had its syes open, that it was crying, and that it fumbled with the covers on the bed. She described how appellant filled the foot tub with water, then picked the baby up by the feet and placed it in the tub. She also told how appellant took the baby out of the water, wrapped it in the spread, and put it in the shopping bag, and as he was leaving said he was going to throw it over the Hanover Street bridge.

Appellant was found guilt of murder in the first degree, and was sentenced to the Maryland Penitentiary for life. Bernice was found not guilty of murder, but guilty as an accessory. Iona was found not guilty as an accessory, but guilty of abortion.

Appellant contended that the trial judge erred in permitting Officer Dziwulski and Dr. Lovitt to testify, because the evidence failed to prove with certainty that the body which they described was that of the baby alleged to have been murdered. Dr. Lovitt admitted that positive identification of the body was impossible. However, the rule is well established that evidence, to be admissible, need not be connected positively with the crime alleged. If there is a reasonable probability of its connection with the crime alleged because of the circumstances, it is admissible. Purviance v. State, 185 Md. 189, 193, 44 A.2d 474; Hayette v. State, 199 Md. 140, 144, 85 A.2d 790.

In the case at bar the size of the body, the period of gestation of seven months, and the extent of decomposition all pointed to the probability that the body found by Officer Dziwulski on July 26 was that of the baby whom the appellant was accused of murdering on July 22. Dr. Lovitt admitted that an average of 24 bodies of babies have been found annually in the harbor of Baltimore. However, he stated that the body found on July 26 was the only one brought from the harbor to the morgue between July 22 and July 29. We find no prejudicial error in the admission of the testimony of the policeman and the Assistant Medical Examiner.

Moreover, the corpus delicti was clearly established by direct evidence. In a murder prosecution the proof of the corpus delicti is sufficient if it establishes the fact that the person for whose death the prosecution was instiuted is dead and that the death occurred under circumstances which indicate that it was caused criminally by someone. Jones v. State, 188 Md. 263, 272, 52 A.2d 484.

Appellant's principal contention was that the evidence was insufficient to sustain the conviction, because it failed to prove that the baby was alive when it was placed in the tub of water. He claimed that, while it was true that Polly Conway testified that the baby was alive and that it was drowned by him, she was his accomplice and he should not be convicted upon her uncorroborated testimony.

It is a firmly established rule in this State that a person accused of crime may not be convicted on the uncorroborated testimony of an accomplice. Meyerson v. State, 181 Md. 105, 112, 28 A.2d 833; Swann v. State, 192 Md. 9, 63 A.2d 324. The reason for the rule requiring the testimony of an accomplice to be corroborated is that it is the testimony of a person admittedly contaminated with guilt, who admits his participation in the crime for which he particularly blames the defendant, and it should be regarded with great suspicion and caution, because otherwise the life or liberty of an innocent person might be taken away by a witness who makes the accusation either to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State's evidence. People v. Sapp, 282 Ill. 51, 118 N.E. 416, 422; United States v. Van Leuven, D.C., 65 F. 78, 82.

An accomplice is one who knowingly, voluntarily, and with common interest with the principal offender, participates in the commission of a crime either as principal or as accessory before the fact. Hall v. Commonwealth, Ky., 248 S.W.2d 417; Singer v. United States, 3 Cir., 278 F. 415, 419. The test for determining whether a person is an accomplice of a defendant charged with a felony is whether he could be indicted and punished for the crime charged against the defendant. People v. Konkowski, 378 Ill. 616, 39 N.E.2d 13; People v. Walker, 88 Cal.App.2d 265, 198 P.2d 534.

At common law there are no accessorise in misdemeanors, but all persons who aid or encourage the commission of a misdemeanor are principals. Roddy v. Finnegan, 43 Md. 490, 503, 504. In felonies the accessories may be either 'accessories before the fact' or 'accessories after the fact.' An accessory before the fact is one who aids or abets the principal offender before or at the time of the commission of the crime. An accessory after the fact is one who, knowing that a felony has been committed, harbors and protects the felon or renders him...